Rule2024-05977
Ownership and Control and Contractual Assistance Requirement for the 8(a) Business Development Program; Correction
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 28, 2024
Effective
March 28, 2024
Issuing agencies
Small Business Administration
Abstract
This document corrects a technical error in the definition of substantial bundling that appeared in the Federal Register on April 27, 2023, a final rule entitled, "Ownership and Control and Contractual Assistance Requirements for the 8(a) Business Development Program." The definition of substantial bundling, as it relates to Blanket Purchase Agreements (BPAs), improperly limited substantial bundling to BPAs entered against a U.S. General Services Administration (GSA) Schedule Contract. This notice removes that limitation so that the definition of substantial bundling applies to all BPAs and not only BPAs entered against GSA Schedule Contracts.
Full Text
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<title>Federal Register, Volume 89 Issue 61 (Thursday, March 28, 2024)</title>
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[Federal Register Volume 89, Number 61 (Thursday, March 28, 2024)]
[Rules and Regulations]
[Pages 21431-21432]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-05977]
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Rules and Regulations
Federal Register
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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
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Federal Register / Vol. 89, No. 61 / Thursday, March 28, 2024 / Rules
and Regulations
[[Page 21431]]
SMALL BUSINESS ADMINISTRATION
13 CFR Part 125
RIN 3245-AH70
Ownership and Control and Contractual Assistance Requirement for
the 8(a) Business Development Program; Correction
AGENCY: Small Business Administration.
ACTION: Correcting amendment.
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SUMMARY: This document corrects a technical error in the definition of
substantial bundling that appeared in the Federal Register on April 27,
2023, a final rule entitled, ``Ownership and Control and Contractual
Assistance Requirements for the 8(a) Business Development Program.''
The definition of substantial bundling, as it relates to Blanket
Purchase Agreements (BPAs), improperly limited substantial bundling to
BPAs entered against a U.S. General Services Administration (GSA)
Schedule Contract. This notice removes that limitation so that the
definition of substantial bundling applies to all BPAs and not only
BPAs entered against GSA Schedule Contracts.
DATES: Effective March 28, 2024.
FOR FURTHER INFORMATION CONTACT: Sam Le at (202) 619-1789 or
<a href="/cdn-cgi/l/email-protection#b4c7d5d99ad8d1f4c7d6d59ad3dbc2"><span class="__cf_email__" data-cfemail="780b191556141d380b1a19561f170e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Summary of Errors
This technical correction amends the definition of substantial
bundling in the U.S. Small Business Administration's (SBA's)
regulations at 13 Code of Federal Regulations (CFR) 125.1. The
definition of substantial bundling, as previously published on page
26210 of FR Doc. 2023-07855, mistakenly limited the scope of
substantial bundling, with respect to BPAs, to apply only to BPAs
entered against GSA Schedule Contracts, as authorized by Federal
Acquisition Regulations (FAR) subpart 8.4. BPAs, however, may be
entered in other contexts aside from GSA Schedule Contracts, including
as authorized by simplified acquisition procedures at section 13.303 of
the FAR.
The SBA did not intend to limit the application of the substantial
bundling definition only to BPAs entered against GSA Schedule
Contracts. This is clear from the preamble to SBA's final rule,
published at pages 26188-26189 of 88 FR 26164, which reads, ``SBA
agrees that the consolidation and bundling requirements should apply to
BPAs established with more than one supplier or a single firm and to
both BPAs established under FAR Part 8 or Part 13 procedures.''
Furthermore, the definition of bundling, as defined in the same final
rule that is at issue, applies to BPAs without any specification for
whether those BPAs are issued against a GSA Schedule contract or in
accordance with simplified acquisition procedures. Based on the clear
intent in the preamble and the already established definition of
bundling, SBA amends the definition of substantial bundling to remove
the reference to GSA Schedule contracts for BPAs impacted by
substantial bundling.
II. Waiver of Proposed Rulemaking and Waiver of the Delay in Effective
Date
Under the Administrative Procedure Act (APA) (5 U.S.C. 551, et
seq.), while a notice of proposed rulemaking and an opportunity for
public comment is generally required before the promulgation of
regulations, this is not required when an agency, for good cause, finds
that notice and public comment are impracticable, unnecessary, or
contrary to the public interest and incorporates a statement of the
reasons for that finding in the document. The APA also generally
requires that a final rule be effective no sooner than 30 days after
the date of publication in the Federal Register, though an agency may
also waive this requirement for good cause found.
Sections 553(b)(B) and 553(d)(3) of the APA provide the exceptions
from the APA notice and comment and delay in effective date
requirements. Section 553(b)(B) of the APA authorizes an agency to
dispense with normal notice and comment rulemaking procedures when the
agency finds, for good cause, that the notice and comment process is
impracticable, unnecessary, or contrary to the public interest.
Additionally, the agency must state that conclusion and the supporting
rationale in the rule. Similarly, section 553(d)(3) of the APA allows
the agency to waive the 30-day delay in effective date where good cause
is found and the agency includes that conclusion and the supporting
rationale in the rule.
The SBA is publishing this technical correction without advance
notice or an opportunity for comment because it falls under the ``good
cause'' exception of the APA, 5 U.S.C. 553(b)(B). This document
corrects technical errors made in the final rule, which was published
in accordance with the APA after the SBA proposed the rule and provided
the public with an opportunity to comment on the proposal. The
correction contained in this document does not make any substantive
changes to the policies adopted in the final rule and explained in the
preamble. This document makes a technical correction within the
regulation text to align the definition of substantial bundling with
the already published definition of bundling and for consistency with
the policy discussion of the substantial bundling definition in the
preamble to the final rule. The policy discussion explained that the
substantial bundling definition would apply to all BPAs and not just
those awarded against GSA Schedule Contracts, as supported by the
public comments received. Therefore, the SBA finds good cause to
conclude that it is impracticable, unnecessary, and contrary to the
public interest to undertake further notice and comment procedures to
incorporate this correction.
The SBA is also waiving the 30-day delay in effective date for this
correction. It is in the public interest to ensure that the final rules
setting forth the definition of substantial bundling be accurate so
that agencies and small businesses are aware of when a procurement
action falls within that definition such that the agency prepares the
necessary justification and completes the required analyses and
assessments to maximize small business participation to the extent
possible. If the definition of substantial bundling remains improperly
limited in its application due to the technical oversight in the
definition, there is potential for small businesses to lose the
opportunity to protest procurement actions that were not properly
documented to support substantial
[[Page 21432]]
bundling. The SBA finds that delaying the effective date of this
correction would be contrary to the public interest. In doing so, the
SBA finds good cause to waive the 30-day delay in the effective date.
List of Subjects in 13 CFR Part 125
Government contracts, Government procurement, Reporting and
recordkeeping requirements, Small businesses, Technical assistance,
Veterans.
For the reasons stated above, 13 CFR part 125 is corrected by
making the following correcting amendments:
PART 125--GOVERNMENT CONTRACTING PROGRAMS
0
1. The authority citation for part 125 continues to read as follows:
Authority: 15 U.S.C. 632(p), (q), 634(b)(6), 637, 644, 657(b),
657(f), 657r, and 657s.
0
2. Amend Sec. 125.1 by revising the definition of ``Substantial
bundling'' to read as follows:
Sec. 125.1 What definitions are important to SBA's Government
Contracting Programs?
* * * * *
Substantial bundling means any bundling that meets or exceeds the
following dollar amounts (if the acquisition strategy contemplates
multiple award contracts, orders placed under unrestricted multiple
award contracts, or a Blanket Purchase Agreement or a task or delivery
order contract awarded by another agency, these thresholds apply to the
cumulative estimated value of the Multiple Award Contracts, orders, or
Blanket Purchase Agreement, including options):
(1) $8.0 million or more for the Department of Defense;
(2) $6.0 million or more for the National Aeronautics and Space
Administration, the General Services Administration, and the Department
of Energy; and
(3) $2.5 million or more for all other agencies.
Larry Stubblefield,
Deputy Associate Administrator, Office of Government Contracting and
Business Development.
[FR Doc. 2024-05977 Filed 3-27-24; 8:45 am]
BILLING CODE 8026-09-P
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